Jiang (Migration)

[2022] AATA 3720

Jiang (Migration) [2022] AATA 3720 (7 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yun Jiang

REPRESENTATIVE:  Mr Xiao David Huang (MARN: 0210771)

CASE NUMBER:  2209432

HOME AFFAIRS REFERENCE(S):     BCC2020/2858069

MEMBER:Jason Harkess

DATE:7 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa for reconsideration

Statement made on 07 October 2022 at 4:41pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Student Guardian) – eligible nominating student was refused the Student visa – Student visa application remitted upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 590.111, 590.211, 590.216

STATEMENT OF DECISION AND REASONS

Application for Review – Refusal of Student Guardian Visa

1. The Applicant is a citizen of China. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the Minister’) refusing to grant her a Student Guardian visa. The Applicant is 44 years of age and is presently residing in Victoria, Australia.

2. The Applicant originally applied for the Student Guardian visa on 19 June 2019. The visa was refused on 21 December 2020. The Applicant lodged her review application with the Tribunal on 28 June 2022. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant her visa.1

Type of Visa

1. The specific type of visa which the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa.2 Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. If granted, a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa permits a non-citizen to remain in Australia temporarily to provide appropriate accommodation, support for and for the general welfare of another non-citizen who has been granted a Subclass 500 (Student) visa for the purpose of studying in Australia.

Applicable Criteria

1. The criteria for the grant of a Student Guardian visa are set out in Part 590 of Schedule 2 of the Regulations. An applicant must establish that they meet the

1 The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Divisions 2 and 3 of Part 5 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

2 See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 590.1 to 590.612.

primary criteria set out in clause 590.211 of Schedule 2 of the Regulations. Critically, there must be a nominating student associated with the Applicant’s case who has themselves been granted a Subclass 500 (Student) visa.3 If there is no identifiable nominating student who has been granted a Subclass 500 (Student) visa, the case for a Subclass 590 (Student Guardian) visa must necessarily fail.

Delegate's Reasons for Visa Refusal

1. The Student Guardian visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in clause 590.211 of Schedule 2 of the Regulations. The Applicant had identified Mr Lyutai Gu as the nominating student associated with his case. However, Lyutai Gu was refused his application for a Subclass 500 (Student) visa by the delegate on 16 May 2022, while the Applicant’s visa was refused in this case on 14 June 2022. Because Lyutai Gu’s application for a student visa failed, the refusal of the Applicant’s Subclass 590 (Student Guardian) necessarily followed.

Issue for Determination by Tribunal

1. The issue arising for determination by the Tribunal in relation to the present review application is whether there is an eligible nominating student associated with the Applicant’s case.

Determination of Application without Hearing

1. Lyutai Gu lodged a review application with the Tribunal in relation to the delegate’s decision refusing to grant him a Subclass 500 (Student) visa on 4 June 2022. Lyutai Gu’s review application was assigned Case Number 2208179 and constituted to the same Tribunal Member.

3 Satisfaction of the criteria for the grant of Student Guardian visa is contingent on there being a ‘nominating student’ to which the Student Guardian visa application is attached. The expression ‘nominating student’ is defined in cl 590.111 of Schedule 2 of the Regulations as a person who ‘at the time of the decision for the [Subclass 590] applicant, holds a student visa that was granted on the basis that the person met the primary criteria for the grant of the student visa.’

1. On 7 October, the Tribunal in Case Number 2208179 remitted Lyutai Gu’s application for a Subclass 500 (Student) visa for reconsideration. This was a favourable outcome for not only Lyutai Gu but, by necessary implication, a favourable outcome for the Applicant in the present review application. That is because the remittal in Case Number 2208179 means the refusal of the Applicant’s Subclass 590 (Student Guardian) visa is now no longer a foregone conclusion. This visa application must be reconsidered alongside that of Lyutai Gu.

2. By the operation of s 360(2) of the Act, in circumstances where the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it, the Tribunal is not obliged to conduct a hearing. The Tribunal has considered that it should decide the review in the Applicant’s favour in this case for reasons that have been set out above. Accordingly, no hearing is necessary.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicant a Subclass 590 (Student Guardian) visa ought to be remitted for reconsideration as a result of the favourable outcome for the review applicant Lyutai Gu in Case Number 2208179.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa for reconsideration.